The People of the State of New York, Respondent, v. John Cuoco, Defendant-Appellant.

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Supreme Court, Appellate Division, First Department, New York.

The People of the State of New York, Respondent, v. John Cuoco, Defendant-Appellant.

1990

Decided: January 14, 2010

Andrias, J.P., McGuire, Moskowitz, Freedman, Román, JJ. Richard M. Greenberg, Office of the Appellate Defender, New York (Alexis Agathocleous of counsel), for appellant. Robert M. Morgenthau, District Attorney, New York (Jared Wolkowitz of counsel), for respondent.

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Judgment, Supreme Court, New York County (Gregory Carro, J.), rendered October 11, 2007, convicting defendant, upon his plea of guilty, of attempted robbery in the third degree, and sentencing him, as a second felony offender, to a term of 11/212 to 3 years, unanimously affirmed.

Defendant argues that the court should have granted his motion to dismiss the indictment, made on the ground that an offensive remark made by a grand juror at the close of defendant's grand jury testimony incurably tainted the proceeding.   However, by pleading guilty, defendant forfeited that claim (see People v. Hansen, 95 N.Y.2d 227 [2000] ).   As in Hansen, “[d]efendant in essence seeks a review of the fact-finding process engaged in by the grand jurors” (id. at 232).   The prosecutor instructed the grand juror in question not to vote and directed the other grand jurors to disregard the remark.   Under these circumstances, defendant's claim does not implicate the integrity of the grand jury proceedings (see CPL 210.35[5];  People v. Darby, 75 N.Y.2d 449, 455 [1990] ).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

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CLERK